Marks v Perham

[2020] NSWLEC 1057

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marks v Perham [2020] NSWLEC 1057
Hearing dates:	5 December 2019
Date of orders:	17 January 2020
Decision date:	17 January 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1)   Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to: (a)   Prune T5 to remove the dead eastern half of the crown. (b)   Remove T7 to no more than 200 mm above ground level. (2)   These works must be carried out in accordance with AS4373 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (3)   The respondent is to give the applicants two days’ notice of the works in (1). (4)   The applicants are to allow all access required to complete the works in (1) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –– risk of damage or injury in the near future – whether the applicants contributed to tree damage
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Joaquim v Adamson [2009] NSWLEC 1312 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373 Pruning of amenity trees 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Aidan Austin Marks (First Applicant) Ryan Mitchell Swanson (Second Applicant) Benjamin William John Perham (Respondent)
Representation:	Counsel: L Walsh (Applicants) B Perham (Litigant in person) (Respondent)   Solicitors: Connor & Co Lawyers (Applicants)
File Number(s):	2019/244876
Publication restriction:	No

Judgment

Background to the application

1. Aidan Marks and Ryan Swanson (‘the applicants’) applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), seeking orders for the removal of two neighbouring trees and for costs of making their application. They claim that a Lilly Pilly (Syzygium paniculatum) (‘T5’) and a China Doll Tree (Radermachera sinica) (‘T7’) are likely to cause damage to their property or injury to a person. They also seek costs of their application, which would require a Notice of Motion to be heard by a Judge or the Registrar of the Court.

2. The two trees are on adjoining land owned by Benjamin Perham (‘the respondent’), who disputes that they are likely to cause damage or injury. He is also of the view that the applicants contributed to the poor condition of the two trees.

Framework for this decision

3. The applicants’ claim concerns only the risk of future damage or injury. Firstly, I must be satisfied that the applicants have made reasonable effort to reach agreement with the respondent. Secondly, if I find that each tree is likely to cause damage to the applicants’ property within the near future, or injury to any person, I can make orders to prevent the damage after considering a range of matters set out at s 12 of the Trees Act.

The onsite hearing

4. The hearing took place onsite, allowing observations of the trees and surrounding environment. Catriona Mackenzie, consulting arborist, gave arboricultural evidence.

The applicants made reasonable effort to reach agreement

5. Mr Perham argued that Mr Marks and Mr Swanson did not make sufficient effort to come to an agreement. The applicants had withdrawn from proposed mediation. Mediation does not guarantee an outcome. This is not the first dispute involving trees between these parties. Based on my findings further below, I note that the applicants’ concerns regarding the condition of the two trees were reasonable, and the responses they received from their neighbour signalled to them that they were unlikely to reach satisfactory resolution through mediation. I find that their effort was reasonable in the circumstances.

Both trees are likely to cause damage or injury

6. Both trees are on the respondent’s land, close to the common boundary. T5 is near the rear of the applicants’ dwelling; and T7 is between the applicants’ and the respondent’s dwellings.

7. T5 is in poor condition and declining. The eastern half of its crown, towards the applicants’ dwelling, is dead, while the western half above the respondent’s property retains live branches and foliage. The applicants have collected, tagged and photographed many small branches and twigs that have fallen from this tree onto their property. They say more branch failures are likely. Mr Perham pointed out that all of the collected branches and twigs are too small to cause damage or injury. Ms Mackenzie was of the opinion that larger branches would be likely to fall in the near future. The applicants argued that her opinion should be preferred above the respondent’s non-expert views.

8. The applicants provided a letter from RKM Consulting Engineers, addressing the site’s wind classification and stating that the site is subject to high winds, particularly from the south and southwest. Mr Perham submitted that recent strong winds had damaged other trees in the area, but not these trees.

9. I accept this to be so, but I find that larger dead branches in the crown are becoming brittle and are likely to fall, regardless of wind, within the near future, a period I regard as approximately 12 months as per Yang v Scerri [2007] NSWLEC 592. Those larger branches may impact the applicants’ dwelling and are also likely to hit anyone beneath or near the tree. T5 is therefore likely to cause damage to the applicants’ property in the near future, or cause injury, so orders can be made for T5.

10. T7 is dead. Its branches are becoming brittle and some are likely to fall within the near future, impacting the roof of the applicants’ dwelling. Because it is likely to cause damage to the applicants’ property, orders can be made for T7.

Consideration of relevant matters

11. Both trees are close to the common boundary between the two properties. Branches of both trees overhang, and are likely to fall onto, the applicants’’ property.

12. Considering that T5 is in poor condition, and T7 is dead, it is likely that council permission would be granted for both trees, were it required.

13. Live foliage is present within the western part of T5’s crown, above the respondent’s property. The tree has been pruned poorly in the past, resulting in poor crown form. Despite this, Mr Perham submitted that he wished to retain the tree. Should it decline further, he intends to grow a vine on it. The principal risk to the applicants arises from the dead branches on the eastern side of the tree toward their property. Therefore it would be possible to prune the tree so as to mitigate risk, while retaining live parts of the tree above the respondent’s property.

14. The trees make no significant contribution to amenity, environmental values, landscape values or privacy. Their removal would be unlikely to impact soil stability.

15. The applicants say it is negligent of the respondent to leave these trees standing while they may cause damage or injury. The respondent alleges that the applicants contributed to the condition of the trees by cutting and poisoning the base of T5 and by removing branches from T7 without permission.

16. A photograph shows some damage to the base of T5 – damage that may have been the result of intentional human activity – but there is no evidence that convinces me that the applicants poisoned this tree. If I was so convinced, that would not prevent orders being made for this tree, but might shift the cost of works from the respondent to the applicants, as per the orders in Joaquim v Adamson [2009] NSWLEC 1312.

17. If the applicants cut branches from T7, as Mr Perham suggests, I am not convinced that would have led to the death of the tree. Again, I see no reason to shift the cost of any works to the applicants.

Conclusion

18. Branches are likely to fall from both trees T5 and T7 within the near future. Although any damage they do to the applicants’ dwelling is likely to be minor, it can be easily prevented and doing so would not result in any loss of amenity or other value. Mr Perham expressed a desire to retain the live portion of T5’s crown above his property. This should not result in any ongoing significant risk to the applicants, so orders will be made for pruning T5, while T7 is to be removed. Should Mr Perham wish to prune a greater part of T5, or remove it entirely, that is a matter for him, pending any permission required from Willoughby City Council.

Orders

19. As a result of the foregoing, the Court orders:

1. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to:

1. Prune T5 to remove the dead eastern half of the crown.

2. Remove T7 to no more than 200 mm above ground level.

2. These works must be carried out in accordance with AS4373 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondent is to give the applicants two days’ notice of the works in (1).

4. The applicants are to allow all access required to complete the works in (1) during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 11 February 2020